Scouller v Cox

[1994] HCATrans 203

!?

.

,

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B54 of 1993

B e t w e e n -

NEVILLE HUGH SCOULLER

Applicant

and

EDMUND JOHN COX

First Respondent

THE HONOURABLE

JEFFERY ERNEST SPENDER

Second Respondent

Application for an adjournment

MASON CJ TOOHEY J McHUGH J

Scouller 1 11/2/94

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 FEBRUARY 1994, AT 11.36 AM

Copyright in the High Court of Australia

MR J.D. WELLER:  May it please Your Honours, John Weller,

solicitor. I seek leave to appear as solicitor for

the applicant. (of John D Weller)

MASON CJ:  I do not think you need leave to appear. You are

entitled to appear.

MR G.A. THOMPSON: May it please the Court, I appear for the

first respondent in this matter. (instructed by M.

Rozenes, QC, Director of Public Prosecutions

(Commonwealth))

MASON CJ:  And there is no appearance for the second

respondent?

MR WELLER:  No. That is the case, Your Honour.

MASON CJ: Yes.

MR WELLER:  It is an application to adjourn this application

for a section 40 removal. The situation, quite

plainly, Your Honours, is this, that the matter is

not ready to proceed - - -

MASON CJ:	Why not?
MR WELLER:	The history of the matter has been that the

client has privately funded me as his practitioner

and it has gone through some 7 days of committal

over two separate hearing blocks and towards the

end of the second stage of the committal

proceeding, the client was out of funds and I have

been carrying him in the resolution of the

committal proceedings and also in terms of the two

Federal Court appearances and preliminary

preparation of this matter.

It is not a flippant attitude by my client.

Just by way of brief background, the situation is

this.	He is a man, since his arrest in January of
last year, has protested his innocence and the
committal has been strenuously defended.	He is a

grandfather who has never had any criminal history

of this sort, and it is a circumstantial evidence
case and we would respectfully submit to

Your Honours, that there is absolutely no case

against Mr Scouller if the evidence of certain

phone taps are not before the Court. That really

leads to this situation, Your Honours, that quite pivotal to his defence is the application that is

sought to be pursued.

MASON CJ: But the argument you want to raise, if the matter

is removed into this Court, was rejected in

Hilton v Wells.

Scouller 2 11/2/94

MR WELLER: That is so, Your Honour, but there are two

matters there. Firstly, Hilton v Wells related to
the Telecommunications Interception Act. These

warrants relate, or rely upon, the Customs Act.

MASON CJ: But the provisions are not materially different,

are they not?

MR WELLER: That is so, Your Honour, except this, that the

Telecommunications Act was amended quite

significantly after Hilton v Wells and whilst the

Customs Act in 1990 had some amendments, it

certainly was not amended anywhere near to the same

extent as the Telecommunications Act.

In relation to Hilton v Wells, the situation

as I understood it in the High Court's decision in Jones, stated quite clearly that Hilton v Wells is

really now confined quite narrowly to a decision on

the Telecommunications Act as it stood pre its

amendments. So, on that point we would seek to

bring up this matter of the separation of powers,

not reopening Hilton v Wells, and further

developing the matters raised by Justice Gaudron in

Jones - - -

MASON CJ: But that was a dissenting judgment.

MR WELLER:  Yes, that is so, Your Honour, but in that

dissenting judgment those issues are very much at

the essence of what is the situation with this

applicant. That judgment indicates that the

matters of whether this administrative act by a

Federal Court judge could be in any way

incompatible with his duties and functions acting

judicially were not addressed in Hilton v Wells;

they were matters that were not raised, and

clearly, that is one area that we really want to

present to the Court full on. I mean, the

situation here, Your Honours, from a practical

point of view, has been that my client, when

attending the very first Federal Court proceeding

seeking to review the warrant matter - my client's

very words were, "Are we going to have the same

judge that swore the warrant?" and it is that
argument, Your Honours, that really seeks to be

addressed very fully - - -

TOOHEY J:  Mr Weller, I do not really understand why you are

seeking an adjournment; all the papers are here.

You are seeking not special leave, but to remove the matter into this Court, you must be well into

your argument for removal.

MR WELLER:  Yes I am, Your Honours. I think the situation

is this, that just from a practical point of view,

as a sole practitioner in a small country town, I

Scouller 3 11/2/94

have carried the applicant to a certain extent and

I had briefed Mr Wendler of counsel and got half-

way through the preparation of this matter when my

client's financial difficulties were further

delayed. As a practical consideration, Your

Honour, I had applied to the magistrate for the

return of my client's passport, which was granted
during the month of November, so that he could get

his business affairs overseas back on the rails.

Now, there is a very clear indication that that

will be the case very, very shortly, and it is only

the one adjournment that was sought.

Your Honours, I have worked quite hard with

Mr Wendler and I feel that the argument can be put

that Hilton v Wells - and also in terms of the

dissenting judgment in Hilton v Wells is what we

would argue is the correct one; really the argument

of distinction as opposed to difference. I mean,

the reality of what we want to put to the Court is

that the fact that the Customs Act says "Federal

Court judge", that that distinction is really no

difference, and clearly it is not a difference in

the eyes of my client, when you go to court.

TOOHEY J: Well, you seem to be putting the argument pretty

well.

MASON CJ: Perhaps as well as Mr Wendler would put it.

TOOHEY J:	I do not know why you want to stop in mid stream.
MR WELLER:	Well, Your Honours~ our main aim is to seek to

have the application removed and we want an

opportunity to fully present these arguments. The

calamity from my client's point of view would be to

have the matter struck out and hence I have put as

much effort as I can into that area of law.

MASON CJ: Well now, what adjournment are you seeking?

MR WELLER: Well, Your Honours, really just to the next

available video link; it is not a lengthy

adjournment proposed. I can indicate that the

instructing solicitor for the first respondent is

present and-clearly the level of co-operation
between the applicant and the respondent has been

very high through the committal proceedings; there

has been no indication whatsoever of a delaying

situation.

MASON CJ: It is quite possible that the next video link, in

Brisbane, will be earlier than you think it is, and

it is quite possible that we could have a video

link from Brisbane in a month or two months' time.

Scouller	11/2/954
MR WELLER:	I had inquired of the Deputy Registrar, and May

had been indicated, and that was suitable within my

client's - - -

MASON CJ:  If the video link were to be earlier than May?

MR WELLER: Well, safely, Your Honours, April would be safe,

but March would be of some concern.

MASON CJ:  It is unlikely to be March, very unlikely to be

March. Now, you think that if you had an

adjournment for that time, you would be able to

overcome these funding problems?

MR WELLER:  Yes, that is so, Your Honour.

MASON CJ: Are there good prospects of that, or not?

MR WELLER:  Yes, they are very real. I do not act for him

in his overseas commercial transactions, but his

ethics in dealing with me to date have been very
excellent, and I have made inquiries of people

representing him and, whilst they are

entrepreneurial businesses, there seems to be a

very real chance -

MASON CJ: There is nothing else you want to say in support

of the application for an adjournment?

MR WELLER: Only, finally, Your Honours, my client has not

yet been arraigned, and my inquiries are that this

trial would not proceed until the latter part of

this year. May it please Your Honours.

MASON CJ: Thank you, Mr Weller. Mr Thompson, what is your

attitude to the application for an adjournment?

MR THOMPSON:  May it please Your Honours, my instructions

are to oppose the adjournment and to do so on two

principal grounds. Can I inquire whether

Your Honours received belatedly an outline?

MASON CJ: Yes, page and a third.
MR THOMPSON:	Thank you, Your Honour, that is the document.

The first basis is that the matter really involves

an interlocutory or a collateral application in the
course of criminal proceedings, and we refer in

paragraph 4 of that document to the authorities

which deal with the undesirability of fragmenting

criminal process in this way when the matter in

issue is really a question of admissibility. The

other matter, Your Honours, is that there has been

an affidavit sworn in this matter by Mr Rice, an
employee of the Commonwealth Director of Public

Prosecutions, which was sworn on 8 February.

Your Honours will probably have two affidavits.

Scouller 11/2/94

This is a longer affidavit. Paragraph 2 of that

affidavit deposes that there were some:

Eight other people were charged at about the

same time -

with the applicant -

with related offences concerning the alleged

importation of 1.2 tonnes of cannabis.

Of those eight:

six have been arraigned and have entered pleas

of guilty ..... Three of the six have been in
custody on remand since 8 January 1993.

And the criminal listing judge of the Supreme Court

of Queensland, His Honour Mr Justice Shepherdson,
has expressed the view, and this is set out in
paragraph 12 of the affidavit of Mr Rice:

that it would be undesirable to sentence the persons charged with related offices, before the trials of the Applicant and one, Evans

have been disposed of.

TOOHEY J: But there is no suggestion, is there, that the

granting of an adjournment for about a month - a

little more - is going to interfere in the

slightest with the trial of the applicant.

MR THOMPSON:  The only evidence, Your Honour, is in

paragraph 14 of the affidavit of Mr Rice where he

says:

The Crown proposes to present an indictment in the Supreme Court of Queensland at Brisbane on

25 February ..... The opportunity to seek a

trial date will arise on that date.

MASON CJ:  You are not going to get a date before April or

May, are you?

MR THOMPSON:  No, Your Honours, but if Your Honours do

remove the matter into the High Court, pursuant to
section 40 of the Judiciary Act, the hearing of
those proceedings would likely involve a delay of

the trial and involve the interests of the other

persons being deferred until that trial is

concluded.

MASON CJ: But that is if we remove the proceedings. At the

moment we are faced only with an application for an

adjournment.

MR THOMPSON:  Yes, Your Honour.

Scouller 6 11/2/94

MASON CJ:  And as I read·your outline of submissions, the

thrust of your argument is not so much that the
matter should not be adjourned, but that the

application for removal should be dismissed, the

notice of motion ought to be struck out. Why can

we not deal with that on the adjourned day?

MR THOMPSON: There is no reason, Your Honour, that that

could not be done on that day. The indications

which had been obtained by my instructing

solicitors were that the next available video link in Brisbane would be in May. If it is going to be

earlier -

MASON CJ: It will be April or May.

MR THOMPSON:  Yes, Your Honours. I concede, Your Honours,

that the matters raised in the outline really go

more to the question of whether the matter should

be removed rather than the short matter of an

adjournment.

MASON CJ: In the circumstances, the proper course for us to

take would seem to be to adjourn it to the next

Brisbane video link, which is what we propose to do.

MR THOMPSON:  Would Your Honours reserve the costs of

today - - -

MASON CJ:  We will reserve the costs of today.

MR THOMPSON: If Your Honours please.

AT 11.50 AM THE MATTER WAS ADJOURNED SINE DIE

Scouller 7 11/2/94